LEGAL UPDATE

LATTOUF V ABC: A LANDMARK RULING ON POLITICAL OPINION

Authors: Mariam Chalak & Zoe Nutter

On 25 June 2025, Justice Rangiah of the Federal Court of Australia handed down a much-anticipated decision finding that the ABC had contravened s 772(1) of the Fair Work Act 2009 (Cth) (the Fair Work Act) for unlawfully terminating Ms Lattouf’s employment for the substantial and operative reason that she held a political opinion.

Specifically, section 772(1)(f) of the Fair Work Act provides that an employer must not terminate an employee’s employment for reasons including ‘political opinion’.

Summary of the court’s findings

Justice Rangiah ultimately found that the ABC contravened section 772(1) of the Fair Work Act by dismissing Ms Lattouf for the substantial and operative reason that she held and expressed a political opinion.

In particular, the evidence showed that Ms Lattouf had uploaded a number of social media posts condemning the mass killing of Palestinian civilians by Israeli forces. Ms Lattouf alleged that a component of her political opinion was that she was supportive of Palestinian human rights, and it was in that context that she uploaded social media posts that are at the centre of her claim. The court found that Ms Lattouf’s support for Palestinian human rights was a political opinion and the expression of that opinion was encompassed by section 772(1) of the Fair Work Act.

Justice Rangiah also found that the ABC breached section 50 of the Fair Work Act by failing to comply with the terms of the ABC Enterprise Agreement 2022-2025 (the Enterprise Agreement) in giving effect to the dismissal of Ms Lattouf’s employment.

Meaning of political opinion

This decision is important and clarifies the breadth of section 772(1) of the Fair Work Act. That is, ‘political opinion’ extends not only to holding a political opinion, but also to expressing a political opinion.

Justice Rangiah indicated that section 772(1) of the Fair Work Act is ‘designed to prevent an employer from terminating the employment of an employee at the behest or encouragement of political lobbyists who seek to prevent the employee from voicing their political opinions’ and on that basis, the meaning of ‘political opinion’ must also encompass the expression of a political opinion.

The allegation that Ms Lattouf engaged in serious misconduct

The court was also required to consider whether Ms Lattouf engaged in serious misconduct. Specifically, the ABC alleged that it summarily dismissed Ms Lattouf for engaging in serious misconduct under the relevant enterprise agreement that governed Ms Lattouf’s employment. That is, the ABC alleged that it issued Ms Lattouf with a ‘reasonable and lawful’ direction that she is not to post on social media, that Ms Lattouf failed to comply with that direction, and accordingly, she breached the Enterprise Agreement.

As a result of the ABC’s defence to Ms Lattouf’s claim, the court was required to consider whether the ABC issued Ms Lattouf an express and unequivocal direction not to post on social media.

Based on the evidence, Justice Rangiah found that it was clear that no such direction had been issued to Ms Lattouf by her supervisor, Ms Green. In fact, Ms Green gave express evidence to the court that she merely ‘advised’ Ms Lattouf and also told others at the ABC that she had not given any direction to Ms Lattouf.

Accordingly, at its highest, Ms Lattouf received ‘advice’ from an immediate supervisor that she should be ‘mindful about posting on social media’, but that suggestion did not meet the threshold of a clear and express direction. Accordingly, no direction had been issued by the ABC to Ms Lattouf, and she could not have been in breach of any direction.

ABC’s breach of the Enterprise Agreement

The court also found that the ABC breached the Enterprise Agreement.

As part of its obligations under the Enterprise Agreement, the ABC was required to give Ms Lattouf an opportunity to respond to any allegations of misconduct. No such opportunity was given to Ms Lattouf, and she was deprived of procedural fairness. To that end, the ABC breached section 50 of the Enterprise Agreement, which prohibits a person from contravening an enterprise agreement.

Key takeaways for employers

Key takeaways for employers include:

1. Employees are permitted to hold and express political opinions. Employers’ policies and guidelines must be reviewed or updated to ensure that they align with the Fair Work Act and the protections available to employees under the legislation.
2. Dismissals must be handled very carefully. What is the underlying reason for the dismissal? What process will be utilised to give effect to a dismissal? Is there an enterprise agreement that should also be considered as part of the dismissal process? These are all important factors that must be genuinely considered by an employer.
3. Issuing directions to employees must be handled carefully. Employers must ensure that any direction issued to an employee is unequivocal, express and in writing. Employers should also seek advice to ensure that the direction is ‘reasonable’ and ‘lawful’.

Harmers Workplace Lawyers can provide advice on the dismissal process, including whether an employer’s policies and guidelines are in accordance with the Fair Work Act, to ensure that all parties are aware of their rights and obligations. If you require legal advice or assistance, please contact our legal team at + 61 2 9267 4322.

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